I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.

But it's an important case! And the facts are terrible! This defendant did really bad things.

That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

You have a really big vein throbbing on your head and I am concerned it is going to burst and it will be really gross.

Congress passed it in 1970 to address organized crime. It was specifically designed to help with some of the difficulty that prosecutors traditionally had in cracking big organized crime rings — mafia families, drug trafficking organizations, that sort of thing.

What sort of problems?

The stuff that crime bosses did was already illegal. But it could be very hard to attack the whole enterprise instead of one act after another. You could take down some mook for one street assault, but you couldn't take down the mook's boss's boss. You had to nibble at the edges, and meanwhile the crime family or drug ring or whatever kept making money.

RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its acts, go after people who supported it, and take its assets.

Why not just charge a conspiracy?

Good question. A RICO claim is really just an elaborate over-complicated conspiracy claim. The answer, in part, was that it was 1970, crime was way up, Nixonian "law and order" was popular, and everyone wanted to be seen as doing something.

Wait. I thought RICO let you sue people. It's a criminal law?

It's both.

And even though it was passed to deal with large-scale organized crime, now it's vastly overused — not so much by the government, but definitely by plaintiff attorneys.

So you can't sue people for RICO?

Oh you can. It's just that almost all of the time you'll be wrong to do so. A RICO claim doesn't mean "these are bad people." It doesn't mean "they did bad things." It doesn't mean "they did lots of bad things" or "they did bad things over state lines" or "they did bad things and some of them were crimes" or "they did bad things and we need to take them really seriously."

But that's how people use RICO — as an idiotic rhetorical device. Like this:

Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.

I know, right? But I hear his books are good.

So people on the Internet use "RICO" to sound tough. Do lawyers overuse it too?

Oh hell yes. And judges hate it. It's overcomplicated and most of the time it adds nothing to the case.

It's so overused — especially by crazy pro se plaintiffs — and so needless that a lot of federal judges have special RICO orders they issue in RICO cases demanding that the plaintiff explain, in painful detail, why they think they have a RICO claim. Like this one, for instance. Judges issue them automatically as soon as a RICO case hits their docket to gather information to dismiss the case because it's not fucking RICO you idiot.

So what would be a righteous civil RICO claim, as opposed to all the bogus ones?

Let me answer that by telling you the elements of civil RICO — that is, the list of things a plaintiff would have to prove to win a RICO case.

Each of those terms means something complicated — each term is a gateway to a whole bunch of other issues.

Okay. What's "conduct"?

That just means that you have to prove that the particular defendant has a role in the operation or management of the enterprise.

Wait. Isn't the defendant the enterprise?

No. In fact the defendant can't be the same as the enterprise.

An enterprise is a legal entity or group of people. So, for instance, the Gambino Crime Family can be an enterprise, or Prenda Law. But the enterprise has to be different than the defendant for a RICO claim. Instead, the defendants have to be people and entities who run the enterprise. So if you filed a crazy pro se complaint saying that General Motors is a criminal enterprise and named General Motors as the defendant, your claim would be legally insufficient.

That sounds convoluted.

It is. But remember — RICO wasn't supposed to be an everyday tool. It's supposed to be a way to take down slippery crime families.

Okay. So what's a pattern?

A pattern is at least two acts of racketeering activity — which we'll get back to later — over a ten year period. The activity has to be both "related" and "continuous."

"Related" means that it's part of the same effort — so if your crime family does drugs, prostitution, and extortion, all of those could be related. "Continuous" means you have to show either a series of acts over a substantial period of time, or past conduct that by its nature suggests it will continue.

Again, RICO's supposed to be about organized crime. So if you and I decide to knock over a bank, that's not RICO — it's not part of a pattern of conduct, even if the FBI can find more than two charges to apply to it. The idea of RICO is "these people are in the crime business, and as part of the crime business they committed a crime against me."

So what's "racketeering activity"?

Racketeering activity is the commission of a whole bunch of very specific federal crimes. But it's not just any crime. It's only the ones on the list.

That's one of the reasons that the "[advocacy organization I don't like] should be sued for RICO!" arguments are so infuriating. Where's the underlying federal crime? And how is it harming the plaintiff's business or property? RICO doesn't mean "this organization advocates things that are bad for society."

So that's it, right?

No, remember the last element — you have to show that all of the foregoing causes injury to the plaintiff's business or property. It can't be a harm to society at large.

Also, you can sue someone for conspiring to commit RICO — meaning you have to show they agreed to do all that.

It is. It's really difficult even to allege it right in a complaint. RICO claims usually generate a series of motions to dismiss. That's why judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that's something judges don't do for almost any other cause of action. Most of the time, if a civil plaintiff can prove RICO, they can much more easily prove fraud or other more straightforward claims.

But mostly I think it's a scare tactic and a propaganda tool, as its idiotic rhetorical misuse suggests. Lawyers bring RICO claims so they can say "the defendant's behavior is so criminal that we sued them for RICO!" Dupes play along by describing RICO claims as "charges," and generally by acting like a RICO claim suggests that there's already been a finding that someone did something wrong.

It doesn't mean that. A RICO claim just means someone wrote down a RICO claim and filed it. Even if the RICO claim survives a motion to dismiss, that just means that a plaintiff was able to allege a complex set of facts in a convoluted way. It doesn't mean those facts are true.

So why do we still have civil RICO?

Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.

There have been some reforms. One Congressional amendment prevented plaintiffs from using securities fraud as a racketeering act under the statute, probably because investment banks donate enough to members of Congress. And every now and again someone proposes reform. But it's dry, boring, and complicated, so it never goes anywhere. For now, we're stuck with it: a convoluted statute used by twits and crazies to make litigation more expensive, and waved around by morons like a big foam finger at a ball game.

What kind of cookies are your favorite? Perhaps I'll send some by the offices where you work one day to make you feel better. Or should I form an enterprise with a bunch of other readers and establish a pattern of sending you cookies now and then? ;)

I love how the splainer side has grown increasingly irritable over the course of these lawsplainers, while the questioner has grown aware of such irritation and continues asking the questions anyway. Michael Scott was a great beginning, and the cookie was a brilliant ending.

^()^*((*^&*(%^&$%&! I love Stross' work and hate the man's politics. What the hell is it with Scottish socialists that they can produce people who can compete at the top of a ruthlessly competitive field and denigrate the benefits that the system that's rewarded them so well brings.

These guys (Stross, McLeod, the late Banks) or preceptive, forward outside-the-box thinking people when it comes to their writing but insist that the way forward IRL is down a path that blatantly doesn't work no matter how many times its been tried (and its been tried by a number of different types of cultures).

As someone who was on a trial team that successfully tried a civil RICO case (and in a bench trial, we didn't flim-flam a jury) you are absolutely 100% correct. (Yeah, that's a brag.) Virtually no civil cases are RICO, and when you have one, you'll know.

Ours were a set of Defendants who conducted ongoing credit card fraud as credit card processors through a series of sham corporations and various non-defendant fall guys. The hardest part was defining the separation between the Defendants and the Enterprise — thankfully they enlisted a series of flunkies that they never actually hired to be the nominal heads of the sham corporations, which gave us our separation. The perjury, pornography, and death threats helped, too.

Ah, return with me now to those thrilling days of yesteryear. Or, at least the early '80s, when I was in law school, and my Appellate Ad class saddled us with a civil RICO project.

If there's one thing I learned it's that this monstrosity should never have been unleashed in the first place, at least in the civil arena. If ever there was a poster boy for good intentions gone wrong, this is it.

Even then, I recall laughing hysterically as its architect, G. Robert Blakey, a lawyer who was unleashed on the anti-Mob crusade while having exactly zero understanding of how the mob works, is structured, or even is spelled, reassuring all and not so sundry that there was no danger that civil RICO could ever be abused.

For just a second, looking at the title, I thought Mr. Stross was now a guest writer here.

The short answer is, the gun industry viewed as an entirety is perfectly lawful in a country where "[T]he right of the people to keep and bear arms shall not be infringed", and public advocacy groups are similarly protected by the amendment just before that one, but of course there are negligent/corrupt/evil individuals in this industry, same as the certified public accountant industry.

I have never been an NRA member and I don't subscribe to all of its positions, but guns were a part of the culture I grew up in, I learned to hunt game in my youth but haven't followed up in decades, and I am a manual firearms aficionado. If being able to regulate the militia means anything at all, it means that you can regulate the militia's arms. I would be happy with a structure that left me an unregistered revolver, manual rifle and shotgun to go about my private business (I never pack in public), but also removed from our streets the high-capacity, semiautomatic death engines we're seeing all too often these days. Remember Justice Robert Jackson's "The Constitution is not a suicide pact."

What reason do we have to think that in the 2nd amendment and only the 2nd amendment, the authors of the constitution and it's first 10 amendments meant the phrase "the people" to mean an entirely different group than anywhere else that phrase is used.

Well, because you ascribe a certain grammatical consistency that simply doesn't exist.

Worse, you completely ignore what the militia clauses of Article I and Article II provide for, to say nothing of what the debates reveal. Which is a dearth of any discussion of an "individual right" to own a gun. After all, regulation of firearms and firearms possession were hardly unheard of, and no one thought that remarkable until the NRA decided to create something out of whole cloth.

You also ignore the most basic principle of statutory construction, namely: If you find a provision to be in need of more precise interpretation, you look at the legislative history. What did the drafters of a provision say when creating the law? And if the drafters did not express what you think they did, but, indeed, something else entirely, then you interpret the law in the light of what they said they meant.

Now, maybe you think they had their fingers crossed, or simply didn't mean what they said they meant, but those are two rather bogus interpretations, I think you'd agree. And what they said they were talking about was militia service, along with a conscientious objector provision. And nothing about any right to have a gun outside of militia duty. Maybe you think that's irrelevant. In which case you would side with the execrable Scalia and against history. (I would also note that militia arms were generally kept in arsenals, and not the home, but I fear that might drive you into paroxysms.)

Me, I prefer history. I also prefer to look at what the Federalists were saying, and what the anti-Federalists were saying, and neither of those factions were concerned that there had to be any Constitutional right to own a gun.

But what did they know? They only either wrote the frickin' thing, or debated it as it was under consideration by Congress. I'm sure you have a much clearer understanding of what they really meant. Perhaps through a medium, or other form of mind reading.

Or maybe you just don't want to face the rather obvious historical truth. In which case, I can't help you.

Charles Stross is not just a good writer, he also runs an entertaining blog. http://www.accelerando.org/. It is up there with Popehat for informed debate and thought-provoking posts. There is at least a possibility he was joking here. Mr Stross is intelligent enough to know using RICO couldn't be a real thing and I suspect he was using it as a rhetorical flourish. That is still annoying when it is a law with a purpose, but if we punish hyperbole as if it was a real threat we get into all sorts of trouble.

I would be happy with a structure that left me an unregistered revolver, manual rifle and shotgun to go about my private business (I never pack in public), but also removed from our streets the high-capacity, semiautomatic death engines we're seeing all too often these days.

Christ almighty. More murders are committed with hammers than with rifles, and more with fists and feet than with all long arms combined (1). Concealed carry permit holders are more law abiding than cops (2). Most prominent advocates for gun control do not want compromise; they want confiscation and a ban (3). Haven't you got some paste to eat?

The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.

Coxe again:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

St. George Tucker:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government….

8. A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4.

This may be considered as the true palladium of liberty …. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty…. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.

Richard Henry Lee:

[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.

Samuel Adams:

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; ….

Me, I prefer history. I also prefer to look at what the Federalists were saying, and what the anti-Federalists were saying, and neither of those factions were concerned that there had to be any Constitutional right to own a gun.

Because the right to individually own a gun was so basic a right of an Englishman that it wasn't worth mentioning. Note that in Articles 1 & 2, the power to call forth the militia is delegated, but not the power to form the militia. The militia was formed by The People, and the historical record is clear on that. Officers of the militia were elected or appointed by the militia itself, not the Federal state. The militia wasn't outfitted by the state like a standing army — they would be resupplied by them with food and powder, but not outfitted. In order for there to be a militia, the People had to already own arms.

@jeff – if we accept that the meaning of "arms" in the 2nd Amendment represents tools necessary for a militia to successfully accomplish national defense, it would obviate that the amendment explicitly empowers ownership of a full range of modern military grade weaponry.

It seems the primary reason we have adopted the "individual" interpretation and reduced the definition of "arms" to mean "a handful of reasonably low-caliber guns, bow & arrows, clubs and edged weapons" has more to do with the desire to prevent any state from establishing the capacity to engage civil war than lobbying efforts from the NRA. The NRA has simply adopted and reworked the underlying logical arguments to advance their political objectives

Simply put, individuals running around occasionally killing each other with comparative pea-shooters don't pose a risk to those in established power – even at 50 lives a pop. The idea of an organized (and regulated) state militia holding arms appropriate for national defense scares the living crap out of anyone comfortably perched in a bastion of established wealth or power (it probably scares a lot of less-powerful people too … but the opinion of people without money/power are largely irrelevant when it comes to America's laws).

The laws ultimately mean whatever people who hold power decide will benefit them most. My sense is that keeping military-grade arms out of the hands of state governments still appears to be a #1 priority as far as interpreting the 2nd Amendment goes.

So, prenda law in the persons of steel, duffy, and hansmeir for the federal crime of extortion against the list of persons they filed and setteled/dropped causing injury in the form of money paid, lost time/earnings/other personal injury could make a class action rico civil claim?

Huh. Then how come the militia was under the control of the governors of the states? In fact, the militia was a state body, and could not exist legally outside of the state's authority. ("Armed bands" (or gangs) were what unauthorized "militias" were called, and they tended to be outlawed.) Of course, the Constitution changed that, giving major control of the militia to Congress and, when called into federal service, the president.

And you actually make my point: If the individual right to own a gun was so "basic it wasn't worth mentioning," then there was no need for it to be the subject of a constitutional amendment. And it wasn't.

Meaning, it is no more a constitutional right now than it was then. Kind of what I've been saying.

@Kent This is wrong on just so many levels. It is indeed the NRA who pushed for (and finally got – thanks, Antonin!) the "individual right" interpretation. They pushed it for years, even prompting former Chief Justice Burger to call the claim a "fraud." And he was no yuppie puppy.

The militia of today is the National Guard, and it has all kinds of war-making equipment. I don't hear anyone urging we disband the National Guard. And the National Guard operates under the authority, usually, of the state governors, so your argument fails right there.

The "individual right" interpretation was not the law of the land until Heller. The federal circuit courts were united in finding no "individual right" until Emerson, and that was applicable only in the Fifth Circuit (big shock).

I am not quite clear on your point regarding "civil war." The militia exists to put down uprisings, not take part in them.

Racketeering already existed as a class of unlawful activity long before RICO came along. Looking at it, the list of activities given to define "racketeering" cyclically references another statute … that originally defines a set of prohibited activities also called racketeering.

The construction breaks typically fundamental rules of using language to communicate ideas. If this section of statute were in a computer program, it would likely crash the system in any number of creative ways depending on application.

IMO, a lot of laymen turn to RICO because they think it is the correct law that applies to classic first-instance racketeering behavior. For example, I frequently see people referring to various Uber cases as them facing RICO lawsuits when the truth is that Uber (or their founder) faces various allegations of price fixing and racketeering. I assume when such people desire similar actions to be taken against other entities, they probably call for RICO. It seems obvious they want general accountability even if the behavior is more-correctly sanctionable under a different (but similar-sounding) legal principle. Such mistakes by laymen in casual conversation are, IMO, understandable and probably not worth getting bothered by.

Small consolation, but whoever crafted the law was a linguistic asshole. They basically re-defined racketeering without depreciating previous legal meanings of the word.

The "individual right" interpretation was not the law of the land until Heller.

Bullshit.

It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

(Dred Scott v. Sandford)

See also Bliss v. Commonwealth (1822), Nunn v. State (1846), Andrews v. State (1871), in re Brickey (1902), U.S. v. Miller (1929), People v. Liss (1950). See also the following decisions citing various state constitutions: People v. Nakamura (1934), People v. Zerrillo (1922), City of Las Vegas v. Moberg (1971), Motley v. Kellogg (1980), Taylor v. McNeal (1975), and State v. Rosenthal (1903).

Governors. And mayors. And Town Committees. And anyone else who raised up a militia. Militias weren't solely raised by governors — that was simply how the Revolutionary War era militias were organized.

There's nothing in the constitution about the right to travel postal roads (excepting the 9th), but there's no doubt the Founders considered it a basic right.

Since Dred Scott was not a Second Amendment case, I really don't know what you're on about. And since you have not supplied citations, I can only say that, having been reading (and writing) about Second Amendment law for decades, I know one thing: dicta is not law. I don't recognize the state decisions, nor do I understand the need for them since the Second Amendment was federal only, and not applicable to the states, until after the abomination that followed Heller.

United States v. Miller did not recognize any individual right – it didn't reach that issue. Just because cases say legally meaningless things that you like doesn't make them into holdings you can rely on. Read all the decisions from the federal circuits, which in fact did address the claim of an "individual right" and you'll see that until Emerson, as I said, the "individual right" claim was consistently rejected. (And the Emerson decision was laughably horrible in its reasoning and understanding of history.)

This is a typical case of revisionism: "individual right" adherents hunt high and low for some language, any language that can be tortured or cherry-picked to back up their position. Well, Scalia did live long enough to birth the mess that is Heller. Be happy with that, at least until the Court come to its senses and tosses it into the proverbial dustbin of history. Given the state of current events, particularly in Florida, I suspect most people are less than delighted with what Emerson has wrought.

And remember one other thing: An armed society is not a polite society. It is a terrified one.

I'm a corporate lawyer, not a litigator, so I have admittedly no knowledge or experience with RICO. But I am curious about the use of the federal RICO criminal statute in prosecuting gang activity. I have read that gangs have a well-defined structure and hierarchy whereby much if not all of the gang's activities are controlled from a distance and in many instances across state lines. For example, ultimate control of at least two gangs here in my southern hometown is supposedly vested in gang officials residing in Chicago. I have also read that the gang "enterprise" generates much of its revenue through illegal drug sales. It seems to my inexperienced mind that the federal RICO statute would be a viable vehicle for prosecution when individuals and communities are injured by drug sales and subsequent use. It also seems to me that it should be easy to pivot from Mafia-related crime to gang-related crime, but a quick Google search suggests that state RICO statues are being used more often than the federal statute to prosecute gangs. Is there a reason for that? Has DOJ made a policy decision to leave gangs to local authorities? Any insight would be appreciated.

You know it's getting pretty thick on the ground when the Tench Coxe quotes start coming. Coxe apparently didn't realize that the Constitution forbids insurrection in five different places. Coxe was, of course, not a Constitutional scholar, nor even a particularly good reader come to that. Had he not written a letter to Madison that gun nuts love to pull out, no one would even be aware he existed.

Sam Adams withdrew that proposal, BTW. Do we now interpret the Constitution based on things that weren't put in it? If so, I have a couple of recipes lying around that coincidentally shed major light on the Commerce Clause.

This is a good example of how desperate these arguments become. If the amendment actually meant what you say, then you wouldn't have to pull out such lame authority. You know, Congress did debate this thing. I note you avoid citing even one argument from the debates. Is that because no one said anything about an "individual right"?

Kind of surprised that prostitution offenses in the list of predicate acts are referred to as "white slavery"; I wouldn't have thought that euphemism remained in common use that recently. Must be the term that the section of the Code being referred to uses.

The Constitution is rather explicit on who runs the militia. And it ain't a bunch of yahoos in Montana, or on Cliven Bundy's ranch. It is the states and the federal government. Not a lot of wiggle room there. (And the militias in the Revolutionary War were best known for their high rates of desertion, not their fighting prowess.)

But you also make my point. We do not recognize Constitutional rights that aren't in the Constitution. We don't recognize them on the basis of "Well, it didn't need to be said, everyone just kind of knew."

@Jeff — in Perpich v. DoD, the USSC disagrees with you. A state's National Guard is not that state's militia. If a state has a State Guard, that is that state's enrolled militia. All states also have unenrolled militia.

I know it's "law." It's also meaningless. It provides some sort of comfort for those who want to make some sort of argument. And that's about it. Otherwise, what effect does it have? When was the last time you were ordered to train with the "militia" pursuant to it? It has the same vitality as the Third Amendment.

Particularly since the Supreme Court has long said that the National Guard is the militia of the Constitution.

It would be a rather strange approach: When you join the National Guard you actually swear two oaths – one to the state and one to the U.S. And this is the procedure that comports with the Constitution, whereby state militias may be pressed into federal service. I have not heard of a "state" guard being pressed into federal service – doesn't mean it hasn't happened, just that I have never heard of it.

@htom Well, having briefly reacquainted myself with Perpich, I must go Inigo Montoya on you and say that "I do not think that case means what you think it means."

The case expressly holds that enlisting in a State National Guard unit means enlisting in the National Guard for federalization purposes. It refers to a statutory authority for states to have separate organizations not subject to the National Guard requirements, but that wasn't the issue. (And the Court expressed much doubt that such a "State militia" was exempt from being federalized in any event, pointing to other federal statutory authority to federalize the militias grounded in Article I.) The state involved in Perpich, Minnesota, had a law expressly defining the Minnesota National Guard as the "organized militia" of the state, so your distinction wasn't even relevant to the holding. Indeed, the thrust of the case was the degree of control over the state militia that Congress could exercise, which, as the Court held, is pretty damned extensive.

So the case doesn't hold what you say – actually it holds the opposite. Namely, a State's National Guard unit is the "militia" referred to in Article I of the Constitution.

"Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid."

4th wall shattered, and to great effect. Hilarious and well written.

That said, I do kinda agree about it being hyperbole of a non-US non-lawyer. And then I was kinda let down because I realized the whole post was in response to that tweet. And then non-constitutional non-scholars started filling the comments thread with tldr. But then I really did learn about RICO in layman's terms, so this layman isn't as uninformed as before.

(I'd love to stop and chat about the militia for the hundredth time, but not here; so for once I'll post without subscribing to the comments.)

I find Stross's work remarkably uneven. Glasshouse is terrific, Neptune's Brood almost as good; Accelerando surprisingly dull; the Laundry series not my cup of tea, but I can understand why some people love it; the Clan Corporate series had a promising start but lost me after a couple of volumes.

I think Ken MacLeod's thinking is more nuanced than Agammamon says, even if he has a soft spot for certain branches of the Communist movement.

That said, I do kinda agree about it being hyperbole of a non-US non-lawyer

I get that "profit driven murder something something" and "go after the whole industry" is hyperbolic language. But saying that such should be done under "RICO" is weirdly specific and doesn't seem like hyperbole to me.

Of course it can both be true that (1) Stross was being (somewhat) hyperbolic with the overall message and (2) doesn't understand RICO. I just don't think throwing RICO into the message contributes at all to the hyperbole.

I love the Clan Corporate series but about 2/3rds of the way it it felt like he took a look at the main character and decided she was succeeding too well by being logical/sensible and corporate and went "whoops" and decided to nerf her, strip her of a few dozen IQ points and turn her into a bit of a damsel in distress who's simply carried along all in one fell swoop.

Kind of put me off it a bit.

Loved the start of the Laundry series and still like it but I miss some of the whimsical absurdity of the first book that's been replaced with hard-nosed politics.

I think Ken MacLeod's thinking is more nuanced than Agammamon says, even if he has a soft spot for certain branches of the Communist movement.

MacLeod is nominally a libertarian/anarchist – but he comes there from the complete opposite direction. He (based on the ideas espoused in several different series of his) seems to truly believe that *world socialism* (the revolution can not end until the whole world has converted) will lead to the end of the state (The Fall Revolution series). But he also pretty much believes that capitalism can only exist as long as there's a *frontier* to exploit and that eventually, when that frontier is gone (no matter how far into the future), a steady-state planned economy is the only thing that will be 'sustainable' (Engines of Light series).

Banks seemed to think that increasing prosperity and wealth would lead inexorably to socialism.

Its interesting that for both of them, their socialist/libertarian/anarchist utopias only come about through a deus ex machina of ultra-powerful computational ability. Showing, I guess, at least an understanding of what is probably the single most insurmountable obstacle to achieving that utopia – the economic calculation problem.

While I try to avoid confusing what they *write* (especially what's written for individual characterizations) when the same themes come up for multiple characters (such as obedience to the wisdom of the 'Top Men' running the state – The Laundry series), I start to think these are positions held by the author as well.

But you also make my point. We do not recognize Constitutional rights that aren't in the Constitution. We don't recognize them on the basis of "Well, it didn't need to be said, everyone just kind of knew."

Actually, we do. It's called the 9th Amendment to the Constitution. Look it up.

Heller corrected the bad decisions of early 20th C courts who were a little too anxious to go with the popular flow/what the government wanted. (Remember, almost all gun control was about making sure "Those People" didn't get guns).

But the key point that makes it very, very obvious that the 2nd Amendment enumerates an individual right, like ALL THE REST OF THE RIGHTS, is that governments DO NOT HAVE RIGHTS. They have powers. The 2nd Amendment cannot be the right of States to arm their enrolled militia, because STATES DO NOT HAVE RIGHTS. They have powers. It can only be an individual right, because only individuals have rights.

Your revisionist gun-ban blithering is full of lies and crap, and you are a fool if you think most people here are such fools as to believe you. If you believe it yourself, you really are a fool; if you don't, you're a mendacious liar. Which is it?

"Early" 20th Century courts? Early like the 1980s, the 1990s? Really. Emerson was decided by the Fifth Circuit in 2001, which is considerably later than the "early" 20th Century. Silveira v. Lockyer, which repudiated Emerson was a year later, in 2002, also not the "early" 20th Century.

I understand your claim. States don't have true sovereignty, either, though the Federalists assured in many places that they do. Carelessness of language is perhaps regrettable, but not dispositive.

In your rather heated, accusatory response, you ignore what I have previously requested: Namely, there was debate in Congress while this amendment was being considered and revised. Where did any member of Congress state the amendment involved some "individual right"? The people responsible for its passage talked about it. Not a single one stated that the amendment was intended to ensure an individual right to own firearms. Not one. Legislative history is important, because it is relied on by courts in determining a law's intent. But apparently, you believe Congress didn't think it important to say what they were doing. (And why would the amendment contain, originally, an exemption from militia service for conscientious objectors if its concern was for an individual right divorced from military service?) Your argument ignores the history of the amendment, and not much insight into the concerns that gave rise to its creation. And you misstate the history of Second Amendment precedent.

Oh, you're right on one thing–the entire 20th century was fucked up on the 2nd Amendment. I'm glad I lived long enough to see Heller correct things.

As for the rest of your comments, since they consist of "La-la-la-la, I can't hear you over the noise of the wind rushing past my ears as I move these goalposts", I'm ignoring them. You argue in bad faith, you present falsehoods as fact, and you're enough of a fool to think that declaring something to be so makes it so.

You misrepresented the legal precedent, and now you try to walk that back. (You also act like there's no 19th Century precedent against the "individual right" position, which is as false as your claims about the 20th.)

I asked you directly: Where in the Congressional debate was there any support for your position? You have failed to even attempt to substantively respond.

I cited cases and the record. Your response is to shout "Liar!" and run away. Yet you are incapable of identifying one false statement I made.

@Jeff – Sadly, I've probably been wronger. Obviously, I'm NAL. I'm a coder and systems designer. Also bear in mind that professional research tools appear to be generally cost prohibitive – so I'm working with the tools I have (Google, Wikipedia, Cornell U. and stuff). So I'm not so much trying to argue as to lay out my reasoning to see where I'm off base.

First. I'm not necessarily arguing that the interpretation in Heller was correct (or Printz for that matter) … nor that that decision was arrived at based on considerations free of politics. I have zero faith in the current court and serious concerns with recent iterations past. I'm simply trying to decipher the politics. I suppose the simplest solution is that Scalia et. al. were bought off by the NRA, and maybe it's no more than that.

At any rate, say we arbitrarily limit the universe of information to only consider "2nd Amendment Cases" (before the Supreme Court). That leaves Miller and Heller, right? FWIW, Warren Berger doesn't appear to have presided over either of these cases … so I'm lost as to the relevant context where he called the individual right argument a fraud? Either way, in my mind those cases bookend the point nicely – I see Miller as creating a dangerous friction and Heller as resolving it.

It is beyond my expertise to argue a deep interpretation of MIiller. Superficially, looks like the judge said if an individual owns and/or transports a weapon that would reasonably be used by a militia in war that such activity is protected by the 2nd Amendment. Further, as the prohibited weapon in question was not considered an arm that would have been used by a militia, the ownership of such a weapon was not explicitly protected. Actually, this is one of the places I get the idea that a "militia interpretation" obviates dealing with weapons of war.

My understanding is that people serving in the National Guard are not a part of a militia. I thought the constitution makes a distinction between militia members and Federal troops. It appears the precursor to the National Guard were militia members – formally regulated/organized under the Militia Act of 1903. But they have been considered federal troops – empowered under 32 U.S.C. § 109 – since, like, 1956. Is there a current court interpretation declaring the existence of these federal troops supersedes/eliminates the constitutional authority for a militia? That's where I lose a documentation trail if this has occurred.

That is the crux I feel like we brought into modern times – an ever-increasing regulation and ultimate disbandment of state militias rubbing against a 2nd Amendment that obviously has to mean something to the public. If we don't want state militias to exist … what does the amendment mean?

As for Civil War, what is an uprising? Do you consider what the people in Scotland just did an uprising? If they had voted to leave the UK, would that be insurrection? How about if the UK decides to leave the EU … or Grece the Euro? For better or worse, America answered that already.

My point about the Civil War is that we had one. It killed a hell of a lot of us. It also impacted damn near everything about how America's modern government has evolved. And it continues to impact discourse and decision-making even to this day – both inside and outside of government.

It looks like there is a constitutional vacuum caused by the elimination of legitimate militias – at least conceptually. If the constitution says we are allowed to have one … and we (legally) don't have one anymore … where did it go and why can't We the People™ make a new one if we want it? On it's face, that seems like a reasonable series of questions for members of the public to ask.

There have been increasing calls for states to organize constitutional militias and there is a vocal secessionist movement that occasionally even breaks into the mainstream. If Texas or somewhere actually followed through and commissioned a fully armed militia, I like to think we wouldn't immediately respond by bombing Huston today. So wouldn't a move like that ultimately end up in the Supreme Court?

It just feels like if someone takes the flip side of the current 2nd Amendment argument to the Supreme Court, the precedent in Heller might be quite helpful in preventing individuals from claiming the right to purchase and transport weapons of war under Miller. It seemingly limits the individual aspect to relatively non-destructive small arms.

Let's face it. The idiots who took over that wildlife refugee aren't new. I noticed them starting to really emerge in the early 90's. Hell, one of them blew up a federal building. I think their existence *must* hang over every high-level 2nd Amendment policy discussion at least to some extent. Certainly during Clinton and early Bush. The movement was certainly an active concern when Heller was decided.

I'm just saying. The individual interpretation seems to serve a lot of objectives from the political side in terms of tamping down some ultimately dangerous potential aspects of the modern states rights movement. Weather by intent or accident … I don't know.

@Kent Good questions, and thoughtful ones, too. I can only give you my take, though I believe it to be a pretty informed one.

With regard to precedent, the Second Amendment Supreme Court jurisprudence of the 20th Century pretty much comes down to Miller. The problem with Miller is that it has been argued by both sides as standing for whatever argument they're making. It doesn't really get to the point.

There are many federal Circuit Court of Appeals cases throughout the 20th Century denying the "individual right" view. Review of many of these cases was sought in the Supreme Court, but the Supremes never took it. That is not dispositive of anything, but the general feeling was that if the Supremes kept leaving these opinions intact, then they probably didn't have a problem with the "no individual right" position. But there are quite a few of these federal circuit cases.

Obviously, Heller changed all that (which I and many others feared it would). My own position is that Scalia decided what the result he wanted was, and then constructed a path to get there. But, wrong as I and many others are convinced it is, there is no denying that Heller is the current law of the land. The goal now, from my point of view, is to get it reversed. And the Supremes have certainly reversed themselves in the past.

As to the militia: A major impetus for the Constitution was the inability of the federal government to order the state militias into federal service. This goes back to Shays' Rebellion in Massachusetts, and the inability of the federal government to send other state militias to Massachusetts to put down that uprising. (Shays' Rebellion convinced Washington to attend the Constitutional Convention.) So the Constitution provided for ordering the militia into federal service. (And the militia's job is, among other things, to suppress rebellions.) Militias operated under the control of the state government. Private "militias" weren't militias at all, but "armed bands," and usually illegal. The original Militia Act passed in 1792, the 1903 version is an update. The Supreme Court has stated that the National Guard is the militia of the Constitution, particularly due to the fact that there is a State Guard component and a federal National Guard component. And in Perpich, they raised the argument that any other state-sponsored militia would likely be subject to being called into federal service, though it was not necessary to that decision's outcome. But non-state militias don't really exist. Otherwise the Bloods and the Crips would qualify.

But the militia's duties are controlled by the Constitution, and they include suppressing insurrection. And they don't, in any way, involve war on the federal government. That's called, simply, treason.

Remember, too, that both during our early history as a nation through much of the 20th Century, firearms ownership was restricted by the federal and state governments, and this was unremarkable. Licensing and registration was quite common, as well as restrictions on concealed carry or going about armed with other armed men. And at the time of the Articles of Confederation and the later Constitution, what private arms there were were considered to be at the service of the militia if needed. The states and, later, the federal government conducted gun censuses and knew who had what guns. Militia arms were generally kept in armories: The British didn't march on people's homes – they marched on the militia arsenals of Williamsburg and Lexington.

I'm not sure if this has been addressed before, but for whatever reason the front page of Popehat just does not seem to update for me. The top article on it right now is from May 25. How can I find the most recent Popehat pieces (I was linked to this one from Overlawyered btw).

Namely, there was debate in Congress while this amendment was being considered and revised. Where did any member of Congress state the amendment involved some "individual right"? The people responsible for its passage talked about it. Not a single one stated that the amendment was intended to ensure an individual right to own firearms. Not one.

Do you have the recording? I'd love to hear it. Maybe you overlooked those remarks.

If the individual right to own a gun was so "basic it wasn't worth mentioning," then there was no need for it to be the subject of a constitutional amendment.

Actually, according to many of the Founding Fathers, there was no need for ANY of the first 10 amendments, or the bill of rights, because it only repeating the concept that the Federal government had no powers not specifically enumerated, and all others were reserved. The ninth amendment actually spells that out.

You are clearly an advocate of granting unbridled authority to the Federal government, an idea that the founders were trying to protect against. In point of fact, banning any kind of property, and specifically guns, requires an enumerated power the Federal government has never been granted (although I'm quite sure you are fond of the ridiculously expansive "significant impact" rule for interstate commerce, and the re-definition of property into something that can be arrested without consequence to deprivation of the owner).

But all that just provide demonstration of how badly the rule of law has broken down in the US. I guess we should thank you for helping us down that road into chaos and tyranny.

@TheLizard Silly statements like the "road into chaos and tyranny" reveals your argument to be unserious and slightly hysterical.

Madison had quite particular goals in mind in introducing the proposals that became the Bill of Rights. Specifically, he was trying to implement the federal veto of state laws that he had tried, and failed, to get in the original Constitution. Plus, he was fulfilling a promise to those who had demanded a bill of rights in exchange for ratification. Certainly, some of the founders saw no need for the Bill of Rights, and others did.

And the goal of the Constitutional Convention, as well as Madison and Washington, was to create a strong federal government, not a weak one. They already had a weak one. Hence there wouldn't have been much point in creating another weak one.

So let's say there's a certain gentleman who likes to make sporting bets with his friends. And he's a generally friendly guy, so he's got a lot of friends with whom he like to make these sporting bets. And one of these friends, who happens to spend a lot of time on the golf course, happens to be into him to the tune of an amount where people start talking in terms of decimal points, and doesn't have that much ready cash on hand.

And this friendly sporting guy says to the guy who spends his time out on the golf course that another one of his friends, who happens to be on the board of a major public company, knows that the board is about to announce that it is recommending shareholders accept a tender offer that is going to send the per share price up 30%. So the guy who spends time on the golf course puts a few hundred grand down on the stock, and after the takeover announcement, suddenly has the cash to pay off his friendly sporting friend.

Could this be RICO? Or at least close enough to it that the guy who likes golf courses might agree to a civil settlement to avoid having a judge have to figure it out?

RICO (and state RICO acts) have their place and I've used them. Mostly, the disconnect between the harsh penalties with lax elements to prove compared to say conspiracy, come from the fact that a lot of RICO predicate acts are white collar economic crimes that fail to capture the horrors of organized crime (like extortion and murder) that made people really fear and hate organized crime. There are lots of elements, but usually it is easier to prove than many alternatives and can provide a basis for corporate veil piercing (particularly in quirky fact patterns) that isn't available elsewhere.

A typical civil RICO suit will involve offenses like securities fraud (still available under many state RICO acts), mail and wire fraud, charging excessive interest rates, and the like.

Could the owner of a Volkswagen dealership sue a bunch of Volkswagen executives under RICO? On the basis that:

1) these individuals are in charge of
2) the Volkswagen corporation (which is an enterprise), which
3) equipped 11 million cars (which seems like a pattern) with
4) software that cheats EPA tests — and then sold those cars, representing them to have passed the EPA tests (which is fraud, one of the RICO predicate acts)
5) eventually causing Volkswagen sales to plummet, which hurt the dealer's bottom line.

I'm sure that this doesn't hold up, or someone would have tried it. But I don't see why it wouldn't work… anyone care to tell me exactly how I'm being stupid?

Snowden pretty thoroughly exposed the conduct of these enterprises, among which was a pattern of targeting particular businesses and properties of the tech sector.

Going just by their descriptions, I can see a few matches in that racketeering list.

Possible bribery to access corporate data/internet lines; section 1028 (relating to fraud and related activity in connection with identification documents) in the case of LavaBit or any other certificate fraud; section 1029 (relating to fraud and related activity in connection with access devices) attacking Google's middle-end; section 1343 (relating to wire fraud) no shortage of wire fraud to be found; sections 1831 and 1832 (relating to economic espionage and theft of trade secrets) I'm guessing they'd get a pass for foreign companies, but they also targeted domestic companies, also LavaBit; section 2320 (relating to trafficking in goods or services bearing counterfeit marks) lots of malware disguised as legitimate software, also LavaBit.